This is a guest post by the very bright young judge Harshit Sharma (https://www.linkedin.com/in/harshit-sharma-hs30/) on a very interesting legal issue. Here’s how it goes

Cognizance- Meaning 

The term cognizance means taking notice of the matter judicially. Taking cognizance is sine qua non for trial. It is not the same thing as issue of process. In so far as Section 190 of Code of Criminal Procedure is concerned, it basically means application of judicial mind to the averments made in the complaint. At this stage, only thing about which the magistrate is to be satisfied is that whether there exists sufficient ground for proceeding and not whether there is sufficient ground for conviction.

Once the Magistrate applies his mind to the offence alleged and decides to initiate proceeding against the alleged offender, it can be stated that he has taken cognizance of the offence and cognizance is in regard to the offence and not the offender. Cognizance is mainly of the offence and not the offender.

In R.R. Chari v. State of U.P.,^[i] wherein it was stated that: 

“The word ‘cognizance was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings.” Taking cognizance is an essential requisite for initiation of proceedings.

Taking cognizance does not mean any formal action or accepted action of any kind but occurs as soon as a magistrate, as such involves his mind to the suspected commission of the offence.

Modes of Taking Cognizance

The four sources on the basis of which a Magistrate may take cognizance of an offence have been enumerated under Section 190 (1) CrPC. They are:

(a) Upon receiving a complaint of facts constituting the offence. (Section 2 (d) CrPC)

(b) Upon a police report under Section 2 (r) Cr.P.C.

(c) (i) Upon information received from any person other than a police officer (eg: a news item in the print or electronic media or in the internet).

(ii) Upon the own knowledge of the Magistrate (eg: where an offence is committed in the very presence of the Magistrate).

Initiation of Proceedings and Taking Cognizance

Both are different and shouldn’t be confused. Magistrate takes cognizance only when conditions requisite for initiation of proceedings are satisfied. 

After getting a knowledge of basic points regarding cognizance, let’s move towards the point of contention. In the present article author will confine himself to these two points:

• Whether power to take cognizance is limited by territory and what happens when a magistrate who doesn’t have territorial jurisdiction to try the offence takes cognizance of that offence?
• Link Court’s Power to take cognizance

Point – I

It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to jurisdiction of the criminal courts in enquiries and trials. That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. But section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court within whose local jurisdiction such thing has been done or such consequence has ensued. It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence. Power of the court to take cognizance of the offence is laid in Section 190 of the Code.

Sub-sections (i) & (ii) of Section 190 CrPC^[ii] read thus: 

(i) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence:

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon a police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(ii) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Section 193 imposes a restriction on the court of sessions to take cognizance of any offence as a court of original jurisdiction. But any Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not. The only restriction contained in Section 190 is that the power to take cognizance is subject to the provisions of Chapter XIV. There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. 

In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: Except as hereinafter provided. Those words are now replaced by Subject to the provisions of this chapter. Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non-obstante clauses. Any way that is a different matter. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier.^[iii]

This view get support from Section 460^[iv] of CrPC as well:

460. Irregularities which do not vitiate proceedings:

If any Magistrate not empowered by law to do any of the following things, namely:-

(e) to take cognizance of an offence under clause (a) or clause (b) of sub- section (1) of section 190;

This means a Magistrate taking cognizance on Police Report or Complaint even if he doesn’t have the territorial jurisdiction will not vitiate the proceedings as it is a mere procedural irregularity. It is well settled that procedural irregularities doesn’t vitiate the proceedings until and unless it causes serious prejudice to the accused. So our first point is decided in affirmative.

Point – II 

It has to be noted that the Magistrate is appointed by the High Court for the whole of the District. Sub-section (2) of Section 14^[v] of the Criminal Procedure Code, 1973 expressly provides that unless otherwise provided by the definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. It is true that sub-section (2) of Section 15^[vi] of the Criminal Procedure Code, 1973 gives statutory powers to the Chief Judicial Magistrate to make rules or give special orders consistent with the Code as to distribution of business among the Judicial Magistrates subordinate to him and sub-section (1) of Section 14 of the Code of Criminal Procedure, 1973 further empowers the Chief Judicial Magistrate to define the local limits of the area within which the Magistrates appointed under Section 11^[vii] or under Section 13^[viii] may exercise all or any of the powers with which they may respectively be invested under this Code.

In an old case based on old CrPC, Beaumont C.J., in the Bombay Case^[ix], held that mere allocation of a particular area to a particular Magistrate by the District Magistrate cannot by itself be understood to have the effect of excluding the jurisdiction of that Magistrate from over other areas of the same district over which he exercises jurisdiction by virtue of provision of Section 12 (2), Criminal Procedure Code.

Even if a Magistrate’s territorial jurisdiction is restricted by the orders of Chief Judicial Magistrate/ Chief Metropolitan Magistrate as it often happens, then even in such scenario as I have discussed in previous point it is merely a procedural irregularity because a Magistrate’s power to take cognizance is not barred by territorial limits. 

It is well known that whenever any Presiding Officer of the Court is on leave on a court working day, some other Judicial Officer who is competent in accordance with the provisions of the Code to exercise jurisdiction in respect of cases pending in the Court of the Officer who is on leave, is asked to look after the work of that Court. In other words, he temporarily succeeds the Officer who may be on leave, and the very object of asking another Officer to look after the work pending in the Court presided by the officer who is on leave, is that necessary judicial orders may be passed and legal complications may not arise on account of the absence of the Officer on account of leave or otherwise. The successor, unless prohibited by law, can exercise the powers while doing the work of the Court which were required to be looked after during the absence of the Presiding Officer. In any case, presumption that the Officer was performing functions regularly is to be drawn in such cases though such presumption is rebuttable and on account of the Presiding Officer of the other Court being on leave and, therefore, as successor the Link Court could lawfully take the cognizance of the offences under Section 190, sub-section (1), of the Criminal Procedure Code.^[x] So this point is also decided in affirmative. Normally when the officer is on short leave it is better for the link court not to take any action regarding cognizance and to give the shortest possible date in the file, so that the concerned officer can decide on the question of cognizance once he is back from the leave. But when the officer is on long leave it is better to decide on the cognizance and if link court takes cognizance then it has to issue process against the accused, so that the file keeps on running.

Authored by Harshit Sharma, Civil Judge cum Judicial Magistrate/Doctoral Candidate PhD at NLUJ.

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^[i] (1963) 1 SCR 121

^[ii] https://indiankanoon.org/doc/686759/

^[iii] Trisuns Chemical Industry vs Rajesh Agarwal and Others, Criminal Appeal No. 950 of 1999 

^[iv] https://indiankanoon.org/doc/1319177/

^[v] https://indiankanoon.org/doc/862285/

^[vi] https://devgan.in/crpc/section/15/

^[vii] https://indiankanoon.org/doc/819628/

^[viii] https://devgan.in/crpc/section/13/

^[ix] AIR 1935 Bombay 409

^[x] Asgar Khan vs State of Rajasthan, [1998] 2 RLW (Raj) 1016 / [1997] 0 Supreme (Raj) 903